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Restorative justice and system change, part II

In the previous blog entry, Carl started his discussion of restorative justice and system change by challenging part of Ross London’s argument in Ross’s recent book, Crime, Punishment and Criminal Justice – From Margins to Mainstream. This entry led to an important discussion. In order to continue this dialogue, we are publishing Ross’ response, with minor editing, as a guest blog entry. Readers may wish to read the previous blog entry and the resulting discussion as a background to what follows.

Hi Carl

This is a really important discussion that I would be happy to be engaged in with you, my friend Gerry Johnstone and others: how can RJ move into the world of serious crime and adult offenders?

I happen to agree with you that social movements require a bold, radical “avant garde” approach to lay the groundwork for transformation. In positioning RJ as a new paradigm, Howard Zehr was able to ignite an idea and propel it into an international movement. This could not have begun with a modest proposal for mere reform.

But there has been a cost to this way mode of presentation. What I have argued is that positioning RJ as a new paradigm brings with it a kind of dichotomizing tendency associated with many other ideas that have also been framed as new paradigms. This encourages a tendency to dismiss attempts at reform as “co-optation” and, in insisting on the original purity of a concept, the automatic rejection of features of the “old paradigm” regardless of their utility and moral value. (Examples include due process of law, equality of treatment, proportionality in sentencing, the right to counsel etc.) Along with this is a tendency to uncritically embrace every feature of the new paradigm, however questionable (such as penal abolition and disposition by private negotiation, even for repeat and violent criminals).

So, how can we move RJ into the ” mainstream” without thereby losing its soul? This has been the focus of all of my work.

The answer I believe, is to try to understand what exactly IS the soul of RJ. My answer may sound simple but I really do think it is true: the soul of RJ is the effort to repair the harm of crime. This is an utterly original and unique contribution to our understanding of criminal justice that Howard has put forth so effectively, and something that every RJ advocate, regardless of political or philosophical orientation, can agree upon. The mechanisms we devise to achieve the goal of repair are all secondary considerations. What is very clear to me is that the goal of restoration does not require the dismantling of the current criminal justice (CJ) system and its replacement with a radical alternative. Instead of conceiving of CJ as the antithesis of “conventional” CJ, (i.e. one that is, in Kuhnian terminology, “incommensurate” with conventional CJ), what I propose is to conceive of restoration as the overarching goal of criminal justice – one that may inform, reform and transform all of our practices toward a common end. The means we choose to achieve repair in every case may therefore extend to every aspect of CJ – from policing to corrections – and may extend to the full range of practices, both within and outside of the conventional system.

To escape our present marginality, therefore, I argue that RJ must be open to a plurality of means to achieve the end of repair – and must place primary focus on the real needs of victims. As my book states:

In truth, nobody “owns” restorative justice. The original visionaries of restorative justice have bequeathed to the world a wonderful gift – an idea to transform criminal justice as we know it. The true beneficiaries of this gift are neither the theorists nor the criminal justice practitioners, but rather those who suffer from the trauma of crime. The challenge to restorative justice theory and practice is to develop a criminal justice system that is more effective, fair and humane in order to address the needs of crime victims and communities, without preconceptions as to what they “really need” and without limitation to those practices that conform to a favored “paradigm.”

I would love to explore this further with you and your blog readers. And let’s get together some time and talk it through!

2 Responses to “Restorative justice and system change, part II”

First thing that comes to my mind from reading the last part of Mr. London’s paragraph is that RJ is not a fixed paradigm. The RJ paradigm is values based. But RJ doesn’t set the values or the needs of participants, so is not a package of ideas or even of values that need to be applied for every particular case. The individuals participant defines the values and needs and I do not how this could happen fully in a court of law. Secondly, RJ is about preparation, preparation, preparation. How this could happen in the court of law? RJ is creative and adaptable to circunstances and people availability? How can judges, magisters, district attorneys, etc., apply RJ processes that have the person hurting at the center?

Having said that, the RJ paradigm have applications inside the criminal justice system, and outside, and even in spaces of collaboration of inside and outside the system.

RJ does not propose the dismanteling of the traditional system. As RJ is a voluntary process, there may be a need to always keep the traditional system for those who are not ready for RJ.

The effects of RJ are different in every application.

Within the system, RJ helps the CJS to become more humane. However, because the CJS works under the paradigm of punishment, if we apply RJ systematically, will it not we end up only making punishment more humane?

I tend to believe that is outside the system or in proper collaboration with the CJS that RJ could happen at its best expression.

I think you will best appreciate the relevance of punishment to restoration in the context of serious crime. Do you think RJ can ever apply to serious crime such as homicide, rape and armed robbery? Can it apply to child abuse or large-scale toxic waste dumping?

If so, do you believe that restoration can be achieved in these cases if the offender receives no punishment at all?

Of course there are many , many cases in which punishment is neither necessary nor desirable – but ask yourself, are there any cases in which a deserved punishment is both necessary and just?

My argument is simple: if rj, with all its great potential for healing, is ever to apply to these serious cases, we must drop an ideological insistence on rejecting the use of punishment. Of course there must be punishment for serious, violent crime. If we refuse to face this issue with candor, we lose the opportunity for rj to become a significant force for change throughout our cj system.

If you are interested in pursuing this, I would love you to read my book Crime, Punishment and Restorative Justice. In it, I try to put the punishment debate into perspective: the goal of the criminal justice system should not be punishment! The overarching goal should be the restoration of trust in the offender and in society, and the offender’s voluntary submission to a punishment which he himself regards as deserved is merely one means, among many others, of regaining the trust that he destroyed by the commission of a crime.